Washington State II: The Empire Strikes Back
Republican Dino Rossi is now challenging the legality of the Washington State gubernatorial race in the state court. We are most pleased that the Washington Republican Party is refusing to heed "Gov" Gregoire's cynical calls for unity after doing all she can to silence the voices of just over half the voters. The outcome of this fight is critical, in that failure here would reinforce the current tendency of the Democratic Party to litigate its way to office, having failed to win any elections recently.
As we argued below, we would prefer that Rossi's counsel tackle the issue in Federal court, given the directly apposite holdings of Bush v. Gore (Bush II). However, there are a whole range of reasons (mostly political) why attempting to settle the matter in state courts first is probably a good idea.
According to a story in yesterday's Seattle P-I:
The heart of the Republicans' challenge so far is their contention that election workers in several counties fed 437 provisional ballots directly into vote-tabulating machines on election day without determining whether the voters were registered.
Provisional ballots are given to voters whose names don't show up on the registration rolls -- often because they recently moved from another precinct and sometimes because they're not registered voters. Election workers are supposed to set those ballots aside and verify them before adding them to the count. Provisional ballots look exactly like regular ballots, so once they're counted there's no way to go back and separate them out again.
Republicans say this allegation alone should be enough to nullify the election.
"That's more than three times the difference between the two candidates," GOP attorney Robert Maguire told Bridges at last Thursday's preliminary court hearing.
Given the closeness of the race, focusing on these provisional ballots appears to make sense. We wish Rossi the best of luck with his challenge, which we have a lot of faith in given the competence of his general counsel on the issue, former Sen. Slade Gordon, now of counsel to Preston, Gates & Ellis LLP, one of the Pacific Northwest's best law firms. We should also add, however, that we do not hold out much hope for a positive outcome, although recent signs that the people of Washington would like to see a re-vote are cheering.
How the Democrats Stole the Election
Since there has been some confusion and questions raised in the comments on our thread on this topic below, we would like to take this opportunity to re-state the general thesis. A good example of this confusion comes from reader Dingo who posted the following:
"I am guessing that you have not had legal training because you completely misread the "DAVID T. MCDONALD ET AL V. SECRETARY OF STATE" decision because you didn't even get the request for relief correct. The petitioners were asking for the court to order the Sec of State to promulgate uniform standards... that's not the same as asking the court to require the Sec of State to count anything. There is a BIG difference in what you are arguing and what the court decided."
I assure you, Dingo, we have had legal training and we did not get the request for relief incorrect. This is important, because it strikes at the very heart of what the Democrats tried to do, failed to achieve, then ultimately succeeded in achieving.
Dingo is right in one sense: the Democratic party did ask that the court to instruct the Secretary of State to promulgate uniform standards. It is what those standards were to be that reveals the Democratic strategy:
[T]he Washington State Democratic Central Committee seek[s] an order directing Secretary of State Sam Reed to promulgate "uniform standards" for the manual recount now taking place in the Washington State election for Governor. Their Motion and Brief in Support of Emergency Partial Relief specifies that three such sets of standards are being sought:
(1) standards that ensure that all ballots rejected in previous counts are fully canvassed so that the hand recount produces as complete and accurate a tabulation as possible; (2) standards for evaluating previously-rejected signatures according to the more liberal standards applied in most counties; and (3) standards that allow party representatives to meaningfully witness the hand recount, by observing all actual ballots being counted. (Emphasis added).
In other words, the Democrats didn't just want any old uniform standard imposed; they wanted the court to order the Secretary of State to order the counties to re-visit illegal, rejected votes. So, yes, they were asking the court to order the Secretary of State to count new votes. In case this is not clear enough, the court went on to characterize Petitioner's (i.e., the Democratic Party's) request in plain language thusly:
Petitioners thus argue that, contrary to current practice, in a manual recount election workers and canvassing boards must consider anew all ballots previously left uncounted, in keeping with their statutory duty to count all votes cast or each ballot cast, though their argument mainly focuses on rejections made on the basis that absentee and provisional ballot signatures do not match with signatures on file. (Emphasis added).
It was this contention--that a "recount" means revisiting every ballot cast and not a mere recount of votes cast--that formed the central thrust of the Democrats' request for "uniform standards." It was this contention that the court roundly rejected when it held that "under Washington's statutory scheme, ballots are to be "retabulated" only if they have been previously counted or tallied, subject to the provisions of RCW 29A.60.210."
Yet, amazingly, just a few days later, the same court held that the King County canvassing board had the authority to revisit illegal votes (i.e. "consider anew all ballots previously left uncounted") in direct opposition to their holding here that "ballots are to be 'retabulated' only if they have been previously counted..."
With the two unreconcilable holdings, the Court discouraged Republican-leaning counties from revisiting their untallied ballots while, in the end, allowing only one county--King County, the most heavily Democratic county in the state--to revisit a portion of its untallied ballots.
The plain unfairness of this scheme speaks for itself. Under Bush v. Gore, this is an equal protection violation. More than half the voting citizens of the State of Washington have had their Constitutional rights violated. Here's hoping Rossi and the Washington State Republican Party can strike back and correct this obvious and painful wrong.
As we argued below, we would prefer that Rossi's counsel tackle the issue in Federal court, given the directly apposite holdings of Bush v. Gore (Bush II). However, there are a whole range of reasons (mostly political) why attempting to settle the matter in state courts first is probably a good idea.
According to a story in yesterday's Seattle P-I:
The heart of the Republicans' challenge so far is their contention that election workers in several counties fed 437 provisional ballots directly into vote-tabulating machines on election day without determining whether the voters were registered.
Provisional ballots are given to voters whose names don't show up on the registration rolls -- often because they recently moved from another precinct and sometimes because they're not registered voters. Election workers are supposed to set those ballots aside and verify them before adding them to the count. Provisional ballots look exactly like regular ballots, so once they're counted there's no way to go back and separate them out again.
Republicans say this allegation alone should be enough to nullify the election.
"That's more than three times the difference between the two candidates," GOP attorney Robert Maguire told Bridges at last Thursday's preliminary court hearing.
Given the closeness of the race, focusing on these provisional ballots appears to make sense. We wish Rossi the best of luck with his challenge, which we have a lot of faith in given the competence of his general counsel on the issue, former Sen. Slade Gordon, now of counsel to Preston, Gates & Ellis LLP, one of the Pacific Northwest's best law firms. We should also add, however, that we do not hold out much hope for a positive outcome, although recent signs that the people of Washington would like to see a re-vote are cheering.
How the Democrats Stole the Election
Since there has been some confusion and questions raised in the comments on our thread on this topic below, we would like to take this opportunity to re-state the general thesis. A good example of this confusion comes from reader Dingo who posted the following:
"I am guessing that you have not had legal training because you completely misread the "DAVID T. MCDONALD ET AL V. SECRETARY OF STATE" decision because you didn't even get the request for relief correct. The petitioners were asking for the court to order the Sec of State to promulgate uniform standards... that's not the same as asking the court to require the Sec of State to count anything. There is a BIG difference in what you are arguing and what the court decided."
I assure you, Dingo, we have had legal training and we did not get the request for relief incorrect. This is important, because it strikes at the very heart of what the Democrats tried to do, failed to achieve, then ultimately succeeded in achieving.
Dingo is right in one sense: the Democratic party did ask that the court to instruct the Secretary of State to promulgate uniform standards. It is what those standards were to be that reveals the Democratic strategy:
[T]he Washington State Democratic Central Committee seek[s] an order directing Secretary of State Sam Reed to promulgate "uniform standards" for the manual recount now taking place in the Washington State election for Governor. Their Motion and Brief in Support of Emergency Partial Relief specifies that three such sets of standards are being sought:
(1) standards that ensure that all ballots rejected in previous counts are fully canvassed so that the hand recount produces as complete and accurate a tabulation as possible; (2) standards for evaluating previously-rejected signatures according to the more liberal standards applied in most counties; and (3) standards that allow party representatives to meaningfully witness the hand recount, by observing all actual ballots being counted. (Emphasis added).
In other words, the Democrats didn't just want any old uniform standard imposed; they wanted the court to order the Secretary of State to order the counties to re-visit illegal, rejected votes. So, yes, they were asking the court to order the Secretary of State to count new votes. In case this is not clear enough, the court went on to characterize Petitioner's (i.e., the Democratic Party's) request in plain language thusly:
Petitioners thus argue that, contrary to current practice, in a manual recount election workers and canvassing boards must consider anew all ballots previously left uncounted, in keeping with their statutory duty to count all votes cast or each ballot cast, though their argument mainly focuses on rejections made on the basis that absentee and provisional ballot signatures do not match with signatures on file. (Emphasis added).
It was this contention--that a "recount" means revisiting every ballot cast and not a mere recount of votes cast--that formed the central thrust of the Democrats' request for "uniform standards." It was this contention that the court roundly rejected when it held that "under Washington's statutory scheme, ballots are to be "retabulated" only if they have been previously counted or tallied, subject to the provisions of RCW 29A.60.210."
Yet, amazingly, just a few days later, the same court held that the King County canvassing board had the authority to revisit illegal votes (i.e. "consider anew all ballots previously left uncounted") in direct opposition to their holding here that "ballots are to be 'retabulated' only if they have been previously counted..."
With the two unreconcilable holdings, the Court discouraged Republican-leaning counties from revisiting their untallied ballots while, in the end, allowing only one county--King County, the most heavily Democratic county in the state--to revisit a portion of its untallied ballots.
The plain unfairness of this scheme speaks for itself. Under Bush v. Gore, this is an equal protection violation. More than half the voting citizens of the State of Washington have had their Constitutional rights violated. Here's hoping Rossi and the Washington State Republican Party can strike back and correct this obvious and painful wrong.
